February 11, 2004

The reality is even more compelling: A Defense of Marriage Amendment would enshrine, for the first time, language of intolerance and exclusion in a document that was intended to set forth basic rights. Does President Bush really want to be remembered as the guy who first used the Constitution to codify bigotry?

I agree with Professor Volokh that those proposing the amendment can defend their personal motivation by saying they are trying to preserve the political choice at the state level and prevent judges from pre-empting that political process, but I also think that in the end Americans will not accept changing the Constitution in a way the runs against individual rights.

Somewhere along the line the process will grind to a halt as Americans will resist putting something in the Constitution that restricts a particular group. Americans just don't do that. We've only added rights for groups, never taken them away. We took away a sort of liberty once, in Prohibition, but we put it back. I simply cannot believe that Americans will think an expression of negativity toward a particular group belongs in the Constitution.

I don't think the people who support the amendment are themselves bigots. They are struggling with what is a difficult issue right now. Their efforts pressing for an amendment have some political value as part of the dialogue about how the issue should be resolved. But they do risk looking like bigots, as Lithwick writes, and they should think through the effect it will have on them politically. They will not be able to control what is said about them and are bound to hear it said that they are being hateful toward an oppressed group. That will not look good. And the explanation about why it isn't actually hateful is just too complicated!

UPDATE: In response to an email from a student, let me add that I don't mean to deny that there is bigotry in some quarters against gay people. My point is that the relatively educated and thoughtful persons who are leading the political effort here do not deserve to be called bigots. I also don't think it's politically wise for those who favor gay marriage to resort to name calling. I recommend reaching out to the other side and using reason, not further stoking the hostilities, which empowers the mindless sector of your opponents.